Fitch v. StateFitch v. State
- Reporters:
- , ,
- Before:
- Davidson
The Act of the Thirty-first Legislature, making it a penitentiary offense to engage in the business or occupation of unlawfully selling intoxicating liquors in local option territory is a valid law; and it applies to territory that had previous to the enacting of said law adopted local option. Davidson, Presiding Judge, dissenting.
2.—Same—Legislative Power—Will of People.
The adoption of local option laws by the people does not withdraw this territory from legislative control to pass all needful legislation to make the local option laws effective, and to see that the will of the people is carried out.
3.—Same—Power of Legislature—Local Option.
The power to legislate for the efficient enforcement of local option laws is not taken away from the Legislature after the adoption of local option, but only for those offenses that are defined and punishment attached which were in existence at the time the people adopted local option. Distinguishing Lewis v. State, recently decided.
4.—Same—New and Distinct Offenses.
After the adoption of local option in any given territory, the legislative power is not withdrawn from the Legislature, and it is not prohibited from passing any additional legislation defining new and distinct offenses and prescribing penalties therefor.
Under section 20, of article 16, of the Constitution of Texas, unless there are some restrictions growing out of the local option law as adopted by the people, which may be construed as a part of the law itself, the power of the Legislature to enact all suitable and necessary laws for the enforcement of the will of the people on the subject of local option is not in the least interfered with or limited; and it is not required that the Legislature submit to the voters the law which may thereafter be enacted to enforce prohibition. Davidson, Presiding Judge, dissenting.
6.—Same—Business—Occupation—Sale.
Carrying on a business or occupation of selling intoxicating liquors is a distinct and separate offense from that of the sale of intoxicating liquors; as a person can sell a thing without being in the business generally; and there is no constitutional restriction upon the power of the Legislature to define such occupation a separate and distinct offense from the ordinary sale, and make the same applicable to such territory; and this after the people have adopted local option. Following Schwulst v. State, 52 Texas Crim. Rep., 426; Joliff v. State, 53 Texas Crim. Rep., 65; Ex parte Dupree, 101 Texas, 150; 105 S. W. Rep., 493.
7.—Same—Differentiation of Legislative Acts—Statutes Construed—Legislative Intention.
It was evidently intended by the Legislature, in passing the Act of the Thirty-first Legislature making it a felony to unlawfully pursue the occupation of selling intoxicating liquors in local option territory, to use language that would show that the express legislative intent was to make this Act operative in territory that had theretofore adopted local option as well; and which language was wholly dissimilar from the language used in the Act of the same Legislature in amending article 402, Penal Code, making it a penitentiary offense to sell intoxicating liquor in local option territory, and which operates on territory thereafter adopting local option.
8.—Same—Repeal by Implication not Favored.
The Act of the Thirty-first Legislature, making it a felony to unlawfully carry on the business of selling intoxicating liquors in local option territory, is not repealed by implication by another Act of the same Legislature amending article 402, Penal Code, with reference to the sale of intoxicating liquors in local option territory. Following Cain v. State, 20 Texas, 355; Joliff v. State, 53 Texas Crim. Rep., 61.
9.—Same—Insufficiency of the Indictment.
In a prosecution for unlawfully following the business and occupation of selling intoxicating liquors in local option territory, where the indictment failed to allege to whom the required sales were made within the time specified by the law, the same was insufficient and bad upon motion to quash. Ramsey, Judge, dissenting.
10.—Same—Charge of Court—Definition of Occupation.
Where, upon trial of unlawfully pursuing the occupation of selling intoxicating liquor in local option territory, the court in his charge failed to direct the jury that before they could convict the defendant, the State must prove at least two sales within the prescribed time, there was reversible error.
11.—Same—Charge of Court—Definition of Occupation.
In a prosecution of unlawfully pursuing the business and occupation of selling intoxicating liquors in local option territory, there was no error in the court‘s refusal to submit a requsted charge defining the term occupation or business in its usual and enlarged meaning; as the law does not require that such business under the Act of the Thirty-first Legislature should be the defendant‘s principal business; if the defendant followed said business secretly or whenever opportunity offered, it would come within the scope of said Act; but the court should have defined such business or occupation within the meaning of said Act.
Where, upon trial of unlawfully pursuing the business of selling intoxicating liquor in local option territory, the evidence showed that the defendant was the manager of a certain club, the sole object of which was to procure beer to be drunk by the members of said club; that it was not shown how the club would get a sufficient number of members to vote on the admission of new members; that the club had no written by-laws, etc.; and that the same was operated in violation of the local option law, the evidence was sufficient to sustain the conviction. Following Feige v. State, 49 Texas Crim. Rep., 513.
There was enacted by the Thirty-first Legislature an Act making it a felony to pursue the occupation of selling intoxicating liquors in local option territory. See p. 284, Laws of the Thirty-first Legislature. This Act is as follows: “Section 1. If any person shall engage in or pursue the occupation or business of selling intoxicating liquors except as permitted by law, in any county, justice precinct, city, town or subdivision of a county in which the sale of intoxicating liquor has
“Sec. 2. In prosecutions under this Act, where it is proven that there is posted up at the place where such intoxicating liquor is being sold, United States internal revenue liquor or malt license to anyone, it shall be prima facie proof that the person to whom such license is issued, is engaged in and is pursuing the business and occupation of selling intoxicating liquors within the meaning of this Act.
“Sec. 3. In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating liquors within the meaning of this Act, it shall be necessary for the State to prove in all prosecutions hereunder that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment.
“Sec. 4. The inadequacy of the laws of this State to prohibit the unlawful sale of intoxicating liquors in the counties, justice precincts, cities, towns and other subdivisions of this State where the sale of intoxicating liquor has been prohibited by law, creates an emergency and an imperative public necessity, demanding the suspension of the constitutional rule requiring bills to be read on three several days, and the rule is so suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.” On the trial of the case in the court below appellant made a motion to quash and dismiss the indictment upon the ground that the Legislature had no power to change the penalty for the alleged violation of the local option law after the people of a county, subdivision of a county, precinct, etc., have adopted said law; and that the Legislature had no power to create new offenses and greater penalties than those in force when said law was adopted; and that the District Court of McLennan County was without jurisdiction of said offense because of the above facts. The indictment alleged that the appellant engaged in the occupation of selling intoxicating liquors in justice precinct No. 5 of the county of McLennan, and that this business was unlawfully carried on by the appellant after the qualified voters had adopted local option in said precinct.
We are confronted here with the question, whether the offense charged in this indictment is an amendment to the law with regard to sales, or whether said Act creates a new, separate and distinct offense? And whether the Legislature had power to legislate, create and define new offenses other than those in force when local option was adopted, after the adoption of local option? At the threshold of the consideration of this case we are confronted with this proposition: After the adoption of local option in any given territory, is all legislative power withdrawn and is the Legislature prohibited from passing any additional legislation, defining new offenses and prescribing new penalties for these offenses? Commencing with the Dawson case, 25 Texas Crim. App., 670, through an unbroken line of decisions down to and including the case of Lewis v. State, this day decided, it has been held that any Act of the Legislature amending the penalty attached to the sale of intoxicating liquors within local option territory, will not apply to territory that has adopted local option previous to that Act of the Legislature. However, in none of these cases is the contention made or is it announced that after the people have adopted local option, the Legislature is denied the right to pass all needful legislation to make effective the law that has been adopted by the people; and when the people adopt local option they not only have a right to make the demand upon the Legislature, but the obligation is binding upon the Legislature under the Constitution of the State to see that all necessary legislation is enacted to make successfully effective the enforcement of the law in the prohibited territory.
Now, is carrying on a business a separate and distinct offense from a sale? Volume I, Words and Phrases Judicially Defined, says: The
The Thirtieth Legislature passed an Act amending the law with respect to disorderly houses and made a person who sold intoxicating liquors without license, the keeper of a disorderly house. A man by the name of Joliff was indicted and convicted for the violation of this law and appealed the same to this court and the constitutionality of said law was assailed on the ground that it was in conflict with the constitutional provision on prohibition and could not be made to apply to a territory that already had local option. This court held adversely to this contention and speaking through Judge Ramsey, said: “If, however, the State contends this court should assimilate the Act in question to a law by its terms limited to local option territory, then they insist that such Act dealing, as it does, with the sale of intoxicating liquors, and being germane to the main subject and considered by the Legislature as a necessary auxiliary to the enforcement of the will of the people, as expressed by the adoption of local option, the same should be held by every test as a valid law. We are inclined to believe that both of these contentions of the State are correct.” See Joliff v. State, 53 Texas Crim. Rep., 61. So both by reason and authority the contention here considered must be held adversely to appellant. In the case of Ex parte Dupree, 101 Texas, 150, 105 S. W. Rep., 493, the Supreme Court, in passing upon the search and seizure law, which was another law auxiliary to the enforcement of local option, and in which the contention was made that it could not apply to Brown County, because Brown County was under the local option law at the time of the passage of the Act, says: “The Constitution does not require the Legislature to submit to the vote of the people the law which is necessary to enforce prohibition, and it has not done so. That is a proper subject for legislative action.” It might be said that no
We, therefore, hold that the Act of the Thirty-first Legislature making it a penitentiary offense to engage in the business or occupation of selling intoxicating liquors in local option territory is a valid law; that the same applies to territory that had previous to the enacting of said law adopted local option, and that the adoption of local option laws by the people does not withdraw that territory from legislative control to pass all needful legislation to make the local option laws effective, and to see that the will of the people is carried out. We, therefore, hold that the court below did not err in holding that the law was applicable in precinct No. 5, of McLennan County, which had previously adopted the local option law. There is still another view to take of this matter. It will be observed that the language of section 1 of the Act provides that “if any person shall engage in or pursue the occupation or business of selling intoxicating liquors except as permitted by law, in any county, justice precinct, city, town or subdivision of a county in which the sale of intoxicating liquor has been or shall hereafter be prohibited under the laws of this State.” Article 402 as amended by the Act of the Thirty-first Legislature does not use the language as above underscored, that article making it a penitentiary offense to sell intoxicating liquors. An inspection of the Act clearly shows that the Legislature intended that it should be a violation of law to carry on the business in a territory not only that hereafter might adopt local option, but also in the territory that already had local option; and this language in the statute differentiates this case from the case of Lewis v. State, this day decided. One of the reasons stated by this court for holding that the increased penalty for the sale of intoxicating liquors could not apply to a territory that had
2. It is contended that this law was repealed by the Act of the Thirty-first Legislature amending article 402, this last Act being passed at a date subsequent to the passage of the law in question. Article 402, as amended by the Thirty-first Legislature, makes it a penitentiary offense to sell whisky in local option territory. We hold that the carrying on of the business or pursuing the occupation of selling whisky is a different offense from the sale of whisky, and that the subsequent Act of the Legislature punishing sales does not repeal this Act. The law does not favor repeals by implication. As stated by our Supreme Court in the case of Cain v. State, 20 Texas, 355: “The rule is that in the construction of Acts of the same session, the whole must be taken and construed as one Act and to make a later provision repeal a former there must be an express repeal or an irreconcilable repugnancy between them.” See Joliff v. State, 53 Texas Crim. Rep., 61.
3. The indictment alleges, after the formal part, “that on or about the 31st day of August, in the year of our Lord nineteen hundred and nine, and before the presentment thereof, with force and arms in the county and State aforesaid, W. I. Fitch, in Justice Precinct No. 5, in the county of McLennan, and State of Texas, without being permitted by law, did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors, after the qualified voters of said justice precinct had determined, at an election held in accordance with the laws of said State, that the sale of intoxicating liquor should be prohibited in said justice precinct, and the Commissioners Court of said county had passed an order to that effect, which order had been duly published in accordance with law, against the peace and dignity of the State.” Appellant made a motion to quash
4. On the trial of the case the court charged the jury as follows: “You are charged accordingly, that if you believe from the evidence beyond a reasonable doubt that the defendant did as charged in the indictment between the 12th day of July, 1909, and the 31st day of
5. On the trial of the case the court omitted to define to the jury what was the meaning of pursuing the occupation or business of selling beer. The appellant requested a special charge as follows: “You are charged that before you can convict the defendant in this case you must believe from the evidence beyond a reasonable doubt that the said W. I. Fitch was engaged in the occupation or business of selling intoxicating liquors in a justice precinct in which the sale of intoxicating liquors had been prohibited under the laws of this State without being authorized and permitted to do so by law. In this connection, you are further charged that by the term ‘occupation’ or ‘business,’ as used in this statute, is meant the calling, trade, vocation or business which one principally engages in to procure a living or obtain wealth, and before you can convict the defendant in this case you must believe beyond a reasonable doubt that he was pursuing the occupation or business of selling intoxicating liquors in a precinct in which the sale of intoxicating liquors had theretofore been prohibited by the laws of this State, without being authorized so to do by law, and that he was so pursuing said occupation or principal business for the purpose of procuring a living or obtain wealth.” Counsel in his brief has cited us to the case of Cohen v. State, 53 Texas Crim. Rep., 422, 110 S. W. Rep., 67, as authority in point in support of the special charge requested. The Cohen case was dealing with a different subject entirely. In that case the defendant was indicted for pursuing the occupation or engaging in the business of keeping or storing spirituous, vinous and intoxicating liquors for others in a territory where the sale of intoxicating liquors had been prohibited by law, and this court held that the definition of business and occupation as given by the court was too restrictive. However, this court did not hold that the proof must show that the business was his principal business. We do not think that the charge requested by appellant in this case should have been given, as the same would make it practically impossible to ever enforce the statute in question, and that it gives to business and
6. On the trial of the case it seems that it was shown that in the town of McGregor, which was situated in Precinct No. 5, which had adopted local option, the appellant in this case was the manager of the club that had for its sole object the purpose of procuring beer and having a place where they might drink it; that they rented a room and that any person who desired to join the club would come to the door of entrance and the porter for the club would take his name in and he would be voted on by those in the room at the time, and if he was notified he was elected, he would go in, register his name on the book, pay twenty-five cents as his monthly amount of the rent and that he would drop twenty-five cents in a box, which would entitle him to drink beer that evening, and every time he would come thereafter he was required to drop twenty-five cents in the box before drinking beer. As to how the club originated or was organized the record is silent. As to how the club would get sufficient number of members to vote on the admission of a new member we are not advised.
For the errors indicated, the judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING.
McCord, Judge.—At a former day of this term of court this case was reversed and remanded. However, in the opinion it was held that the Act of the Thirty-first Legislature making it a penal offense to engage in and pursue the business of unlawfully selling intoxicating liquors in local option territory, even though the particular territory had adopted local option before the passage of said law, was constitutional and would operate in any local option territory without reference to the time the local option may have been adopted. In the original opinion we held that the indictment was valid. Motion was
The motion will therefore in part be overruled and will be granted on that ground alleging that the indictment was defective and the case will therefore be reversed and dismissed.
Reversed and dismissed.
Davidson, Presiding Judge.—Opinion is correct holding indictment insufficient. The court ought to have held the case within the rule laid down in Lewis v. State, decided at present term. The principle enunciated in that case is the same as in this case. That case being correct beyond question, should have reversed this case on the proposition the law discussed in this case can not operate in any local option territory until the voters thereof voted on the law and put it into operation subsequent to the enactment of this law. I concur in reversal and dismissal of this prosecution on insufficiency of the indictment, but dissent from the opinion insofar as it does not follow Lewis v. State, and will write further views later.
Davidson, Presiding Judge (dissenting).—When the original opinion was handed down I disagreed for two reasons, first, because of the insufficiency of the indictment, and, second, because the Act of the Thirty-first Legislature under which the prosecution was brought was not and can not be effective in local option territory then existing, nor can it be made operative in that territory until the vote of the people of such territory have declared their will in favor of the local option law subsequent to the passage of the law under discussion. In other words, that the Act of the Legislature under discussion can not become operative in local option localities where the law was then existing. It can only apply where the people have voted upon that law favorably after the passage of the Act. An inspection of the Act in question, makes it apparent that it was passed to prohibit the business of selling intoxicating liquors only in local option territory. This is manifest from a reading of the first section of the Act, and it
Upon a review of the case in motion for rehearing Judge McCord revised his former opinion in this respect, and held the indictment vicious. This view of the question was also taken in Mizell v. State, decided the same day. I, therefore, concur with Judge McCord in holding the indictment vicious. It being necessary to prove that the business of selling was pursued or carried on and that at least two sales were made as prerequisite to conviction, it was, therefore, necessary to allege both phases of the statute in the indictment. The fact that the business was carried on and that at least two sales occurred within the specified three years are prerequisite allegations to the validity of the indictment, and it is equally necessary that the names of the purchasers be stated. The reasons for these views are obvious. It has been so held in all cases of violations of the local option law in well considered opinions. This Act is only a penal one prescribing
I can not, however, concur with my brethren in their holding that the Act of the Thirty-first Legislature, the one under discussion and under which this prosecution was brought, is effective in local option territory where the law was in existence at the time of the passage of the Act. My view of the law is that in order to put this law into operation there must be another local option election held in the territory, that the Legislature has no authority to put this law into operation in such territory, and that it can only be done by force and effect of a vote of the people of the given territory. To my mind it is clearly beyond legislative power to place in operation any law or punishment in local option territory, but that can only be done by vote of the people. Taken in its real and only intent and purpose, this Act was passed to punish the sale of intoxicating liquors in local option territory. It applies nowhere else in this State and had no other purpose, and it can accomplish no other end. The fact that it was enacted to punish selling in a certain way does in no manner change or modify this clear and inevitable conclusion. This the statute itself makes obvious when it declares there must be at least two sales in the specified time within the local option territory to authorize a prosecution and conviction. It is self-evident from the reading of the statute itself that there can be no possible conviction until there has been at least two sales within three years. This phase of the law can not be construed away. It is one of the essential requisites of the law, one of its principal ingredients, and if that phase of the law is construed away, the statute falls and there is no offense. This statute was evidently enacted in order to enhance the punishment for this peculiar or particular manner of selling intoxicating liquors in a local option territory in violation of the law. This Act must depend for its vitality upon the majority vote of the given territory, for until the local option law is placed in effect by a vote of the people this Act can not become operative in that territory. When that law has been defeated by a vote of the people, this Act, as a matter of necessity, would pass out of existence into “innoxious desuetude” with all other laws dependent upon the vitality or existence of the local option law. In such case
If the Legislature can put into effect the local option law without a vote of the people to be affected thereby, then by the same authority
There is one other phase of the majority opinion that I desire to notice. The majority opinion is written apparently, if not really, upon the theory that this Act was attacked as being unconstitutional. I do not so understand the question presented. The only or main question suggested is that this law could not be put into operation in the local option territory without an endorsement or vote of the people. I do not understand that it is contended that the Legislature did not have authority to pass such a law subject to ratification or endorsement by the people. Much of the majority opinion is devoted to the idea that the law was attacked because of its unconstitutionality. The Ezzell case in the 29 Texas Crim. App., 521, seems to be cited in support of some of the propositions along this line. The Ezzell case was not discussing the question involved here. An inspection of that case will show that the question there involved was that a punishment could be had for an infraction of the law when that infraction occurred while the law was in vogue, but the trial and conviction occurred after the law was repealed by a vote of the people. Under the early decisions it was held this could not be done, but the Legislature to meet this changed the law so that the abrogation of the law in the given territory would not exonerate from punishment a violation of that law committed while it was operative. The local option law had been amended by the Legislature on March 30, 1887, and as amended had been voted into operation by the voters of Wilson County, in December, 1888. The amendment of 1887 provided two matters not theretofore included in said law, first, that the repeal of the law should not exempt from punishment any person who had offended against the provisions of that law while it was in force, and, second, that the purchasers of intoxicants in local option territory should not be accomplices. See White’s Annotated Penal Code, article 407. Neither of the above provisions were in existence prior to the Act of March 30, 1887. The law as amended was adopted by the people in Wilson County subsequent to the amendment, and, therefore, became the governing rule of action until repealed by the same vote. This repeal by a vote in that county occurred in March, 1891. The adoption in 1888 of the amendment of 1887 by the people in that county put the amended law into operation. It was not put into operation nor sought to have been so done by the Act of the Legislature. It was, therefore, held in the Ezzell case that the repeal of the law in 1891 by a vote of the
The Schwulst case in the 52 Texas Crim. Rep., 426, is also cited to sustain the proposition that the blind tiger Act was constitutional. If this law had been attacked as being unconstitutional, the Schwulst case might have been applicable. The question here at issue did not arise in the Schwulst case, nor did it arise in the prior case discussed in the opinion of Segars v. State, 35 Texas Crim. Rep., 45. An inspection of the law and the Segars case will demonstrate that it could not have arisen. The blind tiger Act was passed in 1887. The Segars
I deem it unnecessary to discuss the question of constitutional law in regard to this matter further than as stated, that is, under
Ramsey, Judge.—Ordinarily, I should not take the time to prepare an opinion in this case. In view, however, of the importance of the matter and the dissenting opinion of Judge Davidson, which I have seen, and in view of my inability to agree that the indictment in the case is invalid, I have thought it advisable, if not necessary, to make a statement of my views touching the matters involved in the case.
1. The dissenting opinion of Judge Davidson is based largely, if not wholly, on the proposition that the conclusion of the court sustaining the validity of the Act in question rests largely, if not wholly, on the proposition that this conclusion is opposed to and not in harmony with the opinion of the court in the recent case of Lewis v. State. I had the honor to write the opinion of the court in the Lewis case, and whatever other merits it may have, a careful reader will be willing to confess that it evidences a careful examination of the authorities, and that it follows the decisions heretofore rendered by this court. I recognize that the opinion of Judge Davidson on this or any other question is entitled to great deference and respect. Since, however, the opinion in this case and the Lewis case were delivered on the same day, and since I wrote the opinion in the Lewis case, and have agreed and do now agree to the opinion sustaining the law in this case, I shall endeavor briefly to show not only that there is no lack of harmony between the two cases, but that the distinction between them is so broad as to leave ample room to drive a coach and four between the opinions without injury to either. There is, in my opinion, not only no lack of harmony or contradiction between the two opinions, but
That it is within the power of the Legislature to provide ample remedies for evils and abuses growing out of the sale of intoxicating liquors in local option precincts, beyond and aside from the punishment assessed for such sales, is no longer an open question in this court. It was so held in the case of Schwulst v. State, supra, where Judge Davidson held that though the law imposed a higher penalty for those operating a blind tiger than for an ordinary sale, this did not render the statute invalid. If that was the law then, it is certainly the law now. Under the local option law each sale is a different offense, and the person selling may be punished as often as he makes different and several sales. Notwithstanding this statute, we have upheld the validity of a statute which imposed a tax upon liquor dealers in local option precincts. This was first ruled in the case of Snearley v. State, 40 Texas Crim. Rep., 507, in which Judge Davidson dissented, but this has since become the settled rule of this court, and is reasserted in the case of Cunningham v. State, 52 Texas Crim. Rep., 522, 108 S. W. Rep., 678, and in the more recent case of Snead v. State, 55 Texas Crim. Rep., 583, 117 S. W. Rep., 983, where all the authorities are carefully reviewed, and the proposition is thoroughly well settled without dissent or difference between the members of this court. The object of this statute was clearly in aid of the enforcement of the local option law, and for the further protection of society, and to rid the commonwealth of a set of lawbreakers who are doing more to outrage decency and corrupt the youth of our land than any element in it. Such offender was usually known under the guise of keeper of a frosty joint or a traveling bootlegger. He could, of course, be punished for individual sales, but there was an evil back of and beyond the evil wrought in the mere act and fact of the sale. He was an unfair competitor of the man engaged in the sale of liquor under the restraints and safeguards of law. He was doing business in defiance of law. The youth received no protection at his hands as the law provides in case of the saloon keeper. He gave no bond to keep an orderly